The National Rifle Association, Second Amendment Foundation, and Firearms Policy Coalition Action Foundation have teamed up to file an amicus brief urging the Supreme Court to take up the case of a Utah woman seeking to get her Second Amendment rights restored after a conviction for writing a bad check more than fifteen years ago.
We’ve written about Melynda Vincent’s case before, most recently back in February when the Tenth Circuit upheld her lifetime ban on possessing firearms, opining that while “Bruen created a new test for determining the scope of the Second Amendment, the court didn’t appear to question the constitutionality of longstanding prohibitions on possession of firearms by convicted felons.”
Other appellate courts have disagreed with that notion, including the Third Circuit Court of Appeals, which ruled that the law was unconstitutional as it applied to Bryan Range, a Pennsylvania man convicted of lying about his income on a food stamp application more than two decades ago. In that case, the Trump administration declined to appeal the appellate court’s decision to the Supreme Court, and I’m curious to see how or if the administration will defend the statute as it applies to Vincent, who lost her Second Amendment rights after writing that bad check for about $500 in 2008. The DOJ’s reply brief is due on July 11, so we shouldn’t have to long to wait to see how the administration will respond.
At the time she wrote the bad check, Vincent was homeless and in the throes of addiction, but she’s since turned her life around and is now a social worker with her own practice as well as working with the Utah Harm Reduction Coalition. Vincent, who was sentenced to probation in the 2008 case, is a single mom who says she wants to be able to possess a firearm to protect her and her children from harm, but is forbidden from doing so thanks to federal law.
In their amicus brief, the Second Amendment groups argue that the historical record doesn’t support a blanket prohibition on gun ownership for al felons, though it does support disarming “dangerous persons.” In their view (one I wholeheartedly agree with), “[c]ertiorari should be granted to establish that the Second Amendment forbids the disarmament of peaceable Americans.”
History buffs will be enthralled by the brief authored by FPCAF’s Cody J. Wisniewski, SAF’s Adam Kraut, and NRA’s Joseph Greenlee, which goes to great lengths to show that those colonial-era statutes that permanently deprived individuals of their right to keep and bear arms were grossly discriminatory by today’s standards (and Constitutional protections) and cannot serve as historical analogues.
They note that disarmament measures taken during the War of Independence were “wartime measures from desperate governments on the brink of destruction—they were not models for constitutional rights.” In fact, shortly after the war was won, the federal government treated those accused of rebellion with much more leniency.
Shays’s Rebellion. In Shays’s Rebellion, armed bands in 1786 Massachusetts attacked courthouses, the federal arsenal in Springfield, and other government properties, leading to a military confrontation with the Massachusetts militia on February 2, 1787. After the rebellion was defeated, Massachusetts pardoned individuals who bore “arms against the authority and Government of this Commonwealth” or aided the rebellion, under the condition that they “deliver up their arms” to the government and wait three years to reclaim them. But the rebelswere ultimately permitted to reclaim their arms within four months.
The attorneys note that there were three proposals during the conventions to ratify the Constitution that death with who could be prohibited from possessing arms.
Only New Hampshire’s was approved by a majority of its convention. It provided, “Congress shall never disarm any Citizen, unless such as are or have been in actual Rebellion.”
In Massachusetts, Samuel Adams’s proposal ensured “that the said constitution be never construed…to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.”
In the Founding Era, “peaceable” meant the same as today: nonviolent. Being “peaceable” is not the same as being “law-abiding,” because the law may be broken nonviolently. Samuel Johnson’s dictionary defined “peaceable” as “1. Free from war; free from tumult. 2. Quiet; undisturbed. 3. Not violent; not bloody. 4. Not quarrelsome; not turbulent.”
… A third proposal came from Pennsylvania’s “Dissent of the Minority.” Of the 23 members o fPennsylvania’s 69-member convention who voted against ratification, 21 signed the Dissent. It proposed amendments, including that “no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.”
No evidence suggests that “crimes committed” included nonviolent crimes; the only discussion of what the proposal included said it covered insurrectionists. Since disarmament laws traditionally focused on danger, “crimes committed” likely covered violent crimes, while “real danger of public injury” provided a catchall for violence not covered by the law.
The brief explores the laws in place around the time that the Fourteenth Amendment was ratified, and finds that many of them were discriminatory against slaves and freedmen, though “tramps” were also subject to bans on keeping and bearing arms in the latter half of the 19th century as well. But as the Ohio Supreme Court opined when upholding one of those bans, “the constitutional right to bear arms…was never intended as a warrant for vicious persons to carry weapons with which to terrorize others”; buttressing the point raised by the 2A groups that those convicted of non-violent offenses shouldn’t automatically lose their right to keep and bear arms.
The entire brief is well worth a read, and I hope we see more writings from this trio of 2A attorneys and scholars. I’m also keeping my fingers crossed that SCOTUS will address the lifetime prohibition on keeping and bearing arms for non-violent felons by accepting the Vincent case when it considers the case in conference next fall. I’ve never meet Melynda Vincent and probably never will, but from what I’ve read about her it seems decidedly unfair for her to be deprived of her Second Amendment rights… and the Supreme Court has the opportunity to rectify this injustice and at the same time provide lower courts with much-needed clarity about the scope of prohibited person laws.
Read the full article here
